PEOPLE v. BREEN

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Bobby BREEN, Appellant.

Decided: January 25, 1999

GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN and GLORIA GOLDSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Cynthia Colt of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Laura B. Schneider of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered July 30, 1996, convicting him of attempted robbery in the second degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the prosecutor's comments in summation in effect shifted the burden of proof from the People to him by referring to the “unchallenged” and “uncontroverted” evidence of the defendant's involvement in the crime constituted reversible error is unpreserved for appellate review (see, CPL 470.05[2];  People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243;  People v. Mingey, 190 N.Y. 61, 82 N.E. 728).   In any event, the prosecutor's comments were not so prejudicial as to constitute reversible error (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787), in light of the strong evidence of the defendant's guilt and the minimal likelihood that the jury's verdict was influenced by the remarks.   Moreover, the trial court's subsequent charge to the jury clarified the defendant's constitutional privilege, emphasized that the burden of proof remained with the People, and admonished the jury that no inference was to be drawn from his failure to testify (see, People v. Bryant, 163 A.D.2d 406, 407, 559 N.Y.S.2d 16;  People v. Lynch, 145 A.D.2d 440, 535 N.Y.S.2d 413;  People v. Scott, 138 A.D.2d 421, 525 N.Y.S.2d 703;  People v. Montalvo, 125 A.D.2d 338, 509 N.Y.S.2d 66).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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